October 17, 2005

What I Would Ask Strict Constructionists

Hatched by Dafydd

(Or whatever they choose to call themselves.)

Would it be unconstitutional for a state legislature to enact a law banning all vaccination within the state?

If one did, would any court at any level be allowed, under your judicial philosophy, to overturn such an insane act? Would Congress be constitutionally allowed to do so, under any element of the grant of rights in Article I, Section 8?

If your answer to either of these is Yes, doesn't that entail some level of judicial activism... in a good cause, of course? And if the answer is No and No, those kids just gotta die of polio, diptheria, and typoid fever... then doesn't the whole philosophy of governance fail the most basic test of preserving the citizenry's life, liberty, and pursuit of happiness?

I was inspired by Dennis Prager's remark at the KRLA Talkfest yesterday that "purists can ruin great movements." I believe that absolute blind purity of essence in even a movement such as originalism (by whatever name) is destructive of the very goals it was designed to foster.

Hatched by Dafydd on this day, October 17, 2005, at the time of 6:30 PM

Trackback Pings

TrackBack URL for this hissing: http://biglizards.net/mt3.36/earendiltrack.cgi/122

Listed below are links to weblogs that reference What I Would Ask Strict Constructionists:

» Big Lizards have Big Questions from Keith D. Milby :: blog
[Read More]

Tracked on October 17, 2005 6:47 PM

Comments

The following hissed in response by: mcg

On a similar vein: in the movie version of I, Robot, the antagonist believed in the correctness of her actions. Why was she wrong?

The above hissed in response by: mcg [TypeKey Profile Page] at October 17, 2005 7:12 PM

The following hissed in response by: mcg

--- If your answer to either of these is Yes,
--- doesn't that entail some level of judicial
--- activism... in a good cause, of course?

No. Under the scenarios as you have described them, the anti-vaccination law is either:
1) unconstitutional itself, in which case it is NOT judicial activism to overturn it; it is the proper execution of the court's duty; or
2) constitutionally reversible by Congressional action, in which case it is CERTAINLY isn't judicial activism, since they never get involved.

--- And if the answer is No and No, those kids
--- just gotta die of polio, diptheria, and
--- typoid fever... then doesn't the whole
--- philosophy of governance fail the most
--- basic test of preserving the citizenry's
--- life, liberty, and pursuit of happiness?

I think it's interesting that you chose vaccination as your scenario. Because in fact, vaccination places those who undergo it at risk of permanent injury or even death. Yes, the risk is small, but it is not zero, at least not for everyone (and we don't necessary know for whom it is risky, and for whom it is not). Hence vaccination is a sort of government-mandated game of Russian Roulette.

Don't misunderstand me; I personally believe the rewards are worth the risks, and I and my family are all vaccinated. But a case could be made that the government doesn't have the right to force people to vaccinate as a condition of entry into public schools, for example. A strict constructionist court would, I believe, uphold the right of the government to have such mandates, because they have been given due process.

But let's actually answer your question. Even if the answer is NO and NO, then I claim this is NOT an indication that the Constitution has failed us. I reject any premise that the Constitution even claims to be a perfect means of preserving life, liberty, and the pursuit of happiness. If it were that, then why does it contain within it a process for amending itself? Indeed, the amendment process is an absolutely necessary part of the document, because it provides is a means of modifying its contents in light of new information, new scenarios, and new understandings.

Thus even if the anti-vaccination statute is upheld as constitutional, and any federal legislation to counter it were deemed unconstitutional, there would still be a democratic means to correct the injustice. And if that process fails---then frankly, that's society's fault, not the Constitution's. We have to accept that, and resist the temptation to put our trust in the hands of 9 justices who only THINK they are more enlightened than the populace. Because frankly, they have often proven themselves quite wrong. So given that neither the court NOR the democratic amendment process is perfect, we should err on the side of democracy.

The above hissed in response by: mcg [TypeKey Profile Page] at October 17, 2005 7:42 PM

The following hissed in response by: LiveFreeOrDie

It would not be unconstitutional. It may be unconstitutional under the state's constitution. Congress should not be constitutionally allowed to override the state, except perhaps for national security reasons.

However, people can leave the state and return.
More importantly, the state would look like a fool, and the legislature would get thrown out of office.

This problem would just take of itself. The beauty of federalism.
The fact is, you have to choose an example that is ridiculous to make federalism look bad. In reality, such moronic stuff will occur only rarely, and will quickly be dealt with.

Federal stupidity sticks around.

Anyway, we can fight as hard as we want for extreme federalism, and never achieve taking it to far. As opposed to statism, which happens on its own.

The above hissed in response by: LiveFreeOrDie [TypeKey Profile Page] at October 17, 2005 7:46 PM

The following hissed in response by: Dafydd ab Hugh

Mcg:

But let's actually answer your question. Even if the answer is NO and NO, then I claim this is NOT an indication that the Constitution has failed us.

I didn't say that No plus No meant the Constitution had failed us; I said it meant that the governmental philosophy that produced the two No's had failed its most basic duty.

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at October 17, 2005 8:49 PM

The following hissed in response by: blotter

Our system of government will inevitably produce bad results some of the time. The hypothetical case you present is supposed to entice us into saying, "If this bad result occurs, and the courts lack the power to correct it, then the system is bad."

This is plausible at first glance, but it is wrong. The trouble is that, in order to make the courts sufficiently powerful to correct any bad legislation, you would have to grant them unlimited discretion to substitute their own policy choices for those of legislatures. There would be various consequences of this, one of which would be that the courts would produce bad results in many matters that they currently leave to legislatures. For the courts do produce bad results themselves. Judges are people too.

You could argue that courts, especially courts of appeal, are better policy-makers than legislatures, or, that policy would always be better if it had to go through a two-stage process, first in the legislature, then in the courts. If you want to make that argument, do it; your argument should cover the pros and cons, not just a hypothetical case such as the one you gave.

Blotter

The above hissed in response by: blotter [TypeKey Profile Page] at October 17, 2005 8:50 PM

The following hissed in response by: Dafydd ab Hugh

LiveFreeOrDie:

Anyway, we can fight as hard as we want for extreme federalism, and never achieve taking it to far. As opposed to statism, which happens on its own.

LFOD, federalism IS statism... just statism of a different flavor than, say, nationalism.

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at October 17, 2005 8:51 PM

The following hissed in response by: mcg

First of all, strict constructionism is merely a judicial philosophy or a constitutional interpretive philosophy, not a governmental philosophy.

And as I and others have pointed out, the buck does not stop at the Supreme Court. So when the court makes a, erm, supremely bad decision, there are ways to overcome it in an entirely constitutional and representative manner. The buck stops, therefore, with the people---where it should.

So no, strict constructionism did not fail its most basic duty. Indeed, it upheld it. It was the LARGER system of government that failed in the NO/NO case.

The above hissed in response by: mcg [TypeKey Profile Page] at October 17, 2005 8:59 PM

The following hissed in response by: Dafydd ab Hugh

Blotter:

You mistake my point, Blotter; I don't argue that the courts should decide the great issues... I am realistically and practically a strict constructionist.

What I am not is an absolute purist... and I argue only against absolute purity of essence with no room for exception.

I asked another question earlier, and not a single one of the blogging lawyers was able to give an answer that was (a) pure strict constructionism and (b) not absurd on its face:

Can a state legislature ban the purchase or transfer of firearms? (Or if you prefer, a state law banning the discharge of firearms for any reason whatsoever by non-police civilians.)

Bear in mind that the Second Amendment only specifically protects the keeping and bearing of arms, not any transaction to obtain them in the first place... and not their use.

If you are not allowed to infer any right not explicitly granted in the "black part" (the text) of the Constitution, then how can you justify overturning such a law?

Yet if you do not, the law will effectively overturn the Second Amendment! Damned if you do, damned if you don't.

(Bloody purists.)

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at October 17, 2005 9:00 PM

The following hissed in response by: cdquarles

Dafydd,

The answer to your question is no/no from the point of view of the Federal Constitution. A state law banning vaccinations does not preclude the residents of said state from getting vaccinations elsewhere. I suspect, however, that the constitutions of the several states would preclude such a law. I also suspect that the legislatures of most of the states would not pass such laws. I can see, though, states banning vaccination requirements as a mandatory condition of admission to government schools even if the odds are long against such a thing.

Wrt keeping and bearing arms, Dafydd, I would expect that the Founders understood bearing arms to mean carrying of arms for the purposes of lawful discharging of them on its face, not as a penumbral implication; and that keeping meant possession whether homemade or obtained via a commercial or legal noncommercial transaction.

Yes, Dafydd, a state could ban manufacture, possession, and use of a firearm if said state's constitution expressly authorized such a ban. No state's constitution does so, that I know of. I would not want to live in such a state, nor visit such a state for any significant length of time.

The above hissed in response by: cdquarles [TypeKey Profile Page] at October 17, 2005 9:25 PM

The following hissed in response by: mcg

Dafydd, if you consider yourself that much of a strict constructionist, then indeed you put yourself well to the right of Scalia and Thomas. In fact, as I have recently learned, Scalia prefers NOT to call himself a "strict constructionist" but rather an "originalist", because his aim is to preserve the original INTENT of the text. Where a strict constructionist might permit the sort of games you're playing with the Second Amendment, for example, an originalist probably would not.

The above hissed in response by: mcg [TypeKey Profile Page] at October 17, 2005 9:40 PM

The following hissed in response by: LiveFreeOrDie

Dafydd: "LFOD, federalism IS statism... just statism of a different flavor than, say, nationalism."

If you mean it's government, no kidding. I am not an anarchist.
Or if the term is not equivalent to statist, then I stand corrected.

But federalism is a structural limit on statist tendencies. It prevents a member state, and the collective, from reaching past the point of positive returns. It is a structural limit on libertarianism in the same way. The states oscillate in their degree and shape of government.

To use a from the hip analogy, Nationalism is like ionic bonding and Federalism is like covalent bonding. The harmonics coming from a complex convalent molecule are far more complex, and the resultiing entity is more flexible.

From a simpler view, the states are subject to market forces with each other.


Do you disagree, or did I just use "statism" incorrectly?


Also, as far as the "Bloody purists", shut up. We are obviously talking about abstractions or ideals. Get to close to them, you lose perspective on them.

That does not mean we should not be moving toward them. Particularly when the system inherently pulls away from them.

The above hissed in response by: LiveFreeOrDie [TypeKey Profile Page] at October 17, 2005 9:45 PM

The following hissed in response by: RBMN

Outrage and indignation is the business of the legislature, and the executive branch. That's their job. The business of the courts is strictly applying the law. That's why Governors can't convict by themselves and judges don't command the National Guard by themselves. They'd have too much power. And don't forget, a jury (also part of the court system) can refuse to convict, and a governor can refuse to punish. The system works if you let it work.

The above hissed in response by: RBMN [TypeKey Profile Page] at October 17, 2005 9:53 PM

The following hissed in response by: blotter

Dafydd,

Let me see if I understand your position. You are a strict constructionist, but you think that a rigid application of strict constructionism leads to absurdities. But that does not seem to be the whole of your position. You also think that it is the most basic duty of -- someone: the government in all its branches and levels? who? -- to see that life, liberty, etc., are preserved from catastrophic harm at the hands of the state. If circumstances occur in which this duty is shirked -- e.g., in the vaccination case -- and the excuse is lack of constitutional power to intervene, you maintain that an absurdity, resulting from purism, is to blame.

Is that it?

I suspect that your real beef is with purism, and the part about catastrophic harm is a make-weight. You just find it a convenient way to illustrate the uselessness of purism.

The above hissed in response by: blotter [TypeKey Profile Page] at October 17, 2005 10:02 PM

The following hissed in response by: douglas

Words matter. You are misusing "strict constructionist" to mean literalist. I think that clears that up. sorry to be so late with it.

The above hissed in response by: douglas [TypeKey Profile Page] at October 21, 2005 1:03 AM

The following hissed in response by: Dafydd ab Hugh

Douglas:

Words matter.

Not always.

If I say strict constructionist, you say I should say literalist. If I say literalist, someone will object that I really mean textualist. Textualist, and someone is sure to insist I should be saying originalist.

This is all garbage; it's one religious subsect objecting that all the bad stuff is really committed by a different subsect of his religion; his own is pure and inerrant!

There is no constitutional provision mentioning vaccines whatsoever, or indeed any other medical procedure; there is no textual right to a vaccine, and there is no grant of rights to Congress to enact legislation allowing people to get vaccinated.

All of the above -ists would either have to pretend that the Framers "intended" such protection -- and how is that any different from Griswold? -- or else take the hard line that if a state legislature decides to literally ban all vaccination, for everyone, there is nothing they can do about it (unless the state constitution happens to contain a vaccination clause).

There is a general provision in the Fourteenth Amendment that reads, "No state shall... deprive any person of life, liberty, or property, without due process of law." But all of the above -ists insist that this refers only to the proper procedures being followed: in this case, that the legislature duly met, duly considered the bill, and actually voted for it, after which the governor properly signed it. If so, due process of law was followed.

My point is this: if your judicial philosophy drives you to say that, in the event a state legislature does something insanely stupid that will lead to the deaths of hundreds of thousands of (already born *) people, there is no recourse at any higher level of government, and your only option is to flee the state or suffer the horrible consequences; when not only can't the courts act, but if Congress acts, the courts must properly strike that action down as not within the grant of authority, forcing the people of that state to die on schedule; when you insist that federal authorities and authorities in other states must simply look on helplessly while people die by the tens of thousands from easily preventable causes... then there is something drastically wrong with your judicial philosophy.

But if you instead believe that in such a case, your philosophy must be bent so that tragedy can be averted, then you have avoided the demon of "purity of essence," but you have a new dilemma: since there is no qualitative difference between judicial activism in this case and judicial activism in the case of Griswold or Roe, you must develop a theory of "quantitative" judicial activism -- some way to tell when a particular circumstance is dire enough to require intervention even if that breaks "due process," and how much intervention is allowed -- and who will do the intervening.

(I prefer the president act in an emergency like this, with subsequent review by Congress... sort of like the War Powers Act, which itself is of dubious constitutionality. A strict originalist would have to say that if the president or Congress did act in this case, the courts would have to strike down that action as outside their purview. Let the citizens die, so long as the holy process continues unchallenged!)

Procedure is the means to an end; the end can be either just or unjust. When procedure becomes such an overwhelming focus that the end becomes irrelevant, so long as procedure is followed, then the system is shattered.

The basic purpose of any constitution is spelled out in the preamble of ours:

In order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.

Whenever a particular process becomes potentially destructive of these constitutional ends, the process must be reevaluated and changed.

That is my point. It's not lightswitch reasoning: it's not either-or... either you are going by the original understanding, or else you have unrestrained judicial activism. In fact, you always have some activism, because situations come up that are not envisioned by the Framers, and it would be insane to say that any one branch can make any decision it wants without check in such cases (including the judiciary itelf, of course, but also Congress, the Executive, or a state legislature). The Framers set up checks and balances precisely because they did not want any particular branch of government supreme over all the rest.

To me, there is absolutely no question that the Court has assumed a power all out of proportion to the other branches, and that it must be pruned back, and drastically so. But the solution is not to let the pendulum swing all the way in another direction. It's to extend the same principle of checks and balances to the Court while simultaneously maintaining it on the other branches.

We need a judicial theory that has both original undertanding and also some theory about what to do in unforseen but urgent situations... something other than Scalia's approach that anything not strictly forbidden is unstoppable, and to hell with the results on actual people.

Dafydd

* In the case of abortion, there is no national consensus on when "personhood" begins. There is near 100% consensus on the personhood of human beings after birth; that is why I chose the example of vaccination rather than abortion.

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at October 21, 2005 11:25 AM

Post a comment

Thanks for hissing in, . Now you can slither in with a comment, o wise. (sign out)

(If you haven't hissed a comment here before, you may need to be approved by the site owner before your comment will appear. Until then, it won't appear on the entry. Hang loose; don't shed your skin!)


Remember me unto the end of days?


© 2005-2009 by Dafydd ab Hugh - All Rights Reserved